IMPORTANT POINT : For bringing criminal activity of accused within meaning of Section 34 IPC, there must be specific overt act attributed to accused in attacking victim.

Judgment :

Mohan Lal, J.

Instant Criminal Appeal is directed by the appellant against the judgment and order dated 04-06-2014 rendered by the court of Ld. Sessions Judge Bhaderwah in file No. 25/Sessions titled State Vs Irfan Ali Code Babloo and Ors, whereby, appellant has been convicted and sentenced to undergo rigorous imprisonment for life and fine of Rs. 5000 in FIR No. 57/2002 for commission of offences u/s 302/34 RPC. Be it noted, that in addition to the aforesaid appellant/convict, two (2) more accused persons namely, (i) Irfan Ali Code Babloo S/O Shafat Ali Butt R/O Kilhotran Gandoh & (ii) Jan Mohamand Code Hamza S/O Hashim Din Gujjar R/O Poura Pain Gandoh were named in the charge sheet presented in the court of Ld. JMIC Gandoh on 08-02-2003 for commission of offences 302/34 RPC r/w 7/27 Arms Act & 3 PSS Act, who were accordingly proceeded u/s 512 Cr.PC due to their abscondence. However, during the pendency of trial, appellant/convict Tariq Mattoo was apprehended in execution of General Warrants of arrest issued against him, was tried, held guilty, convicted and sentenced accordingly. Aggrieved of, and dissatisfied with the impugned judgment and order, the appellant/convict has questioned its legality, propriety and correctness on the following grounds:-

(i) that the appellant has been falsely and wrongly booked in FIR No. 57/2002 dtd. 04-07-2002 registered by respondent No.1 SHO P/S Gandoh Bhalessa for commission of offences u/ss 302 RPC/4/27 Arms Act r/w 3 PSS Act for the allegations, that appellant alongwith two more terrorists namely, Irfan Ali Code Babloo S/O Shafqat Ali Bautt R/o Village Kalhotra & Jan Mohamad Code Hamza S/O Hasham Din R/O Pura Pain armed with weapons entered the house of Sher Mohd Rather Sapranch Panchayat Halqa Pacharat Changa brought him out of the house whereafter the aforesaid terrorists fired several bullets from their weapons on said Sher Mohd killing him on spot, after recording statements of prosecution witnesses u/s 161 Cr.PC the investigation was concluded against the aforesaid accused for commission of offences punishable u/ss 302 RPC/4/27 Arms Act r/w 3 PSS Act and accordingly the chargesheet was laid before the trial court, wherein, during trial of appellant/convict he was found guilty for commission of offence u/s 302/34 RPC and was sentenced to rigorous imprisonment for life and fine of Rs. 5000 and in default of fine appellant was directed to undergo further simple imprisonment for two months;

(ii) that the impugned judgment and order of sentence are against law, facts and circumstances of the case, not sustainable in the eyes of law and are liable to be set aside/quashed;

(iii) that the court below has not properly and correctly appreciated the evidence on record in its right perspective, whereas, the prosecution has failed to establish the guilt against appellant, the court below has failed to properly appreciate and consider the grave and material contradictions in the evidence, thereby, has committed glaring illegality and irregularity;

(iv) that the prosecution has failed to prove beyond reasonable doubt offences against the appellant and has passed the judgment and order of sentence purely on assumption, presumptions, whims and surmises and on the basis of evidence of interested witnesses viz; sons and brothers of deceased;

(v) that the trial court while passing the judgment and order of conviction and sentence has lost track of the fact that the evidence which has been produced by the prosecution does not connect the appellant with alleged commission of crime, two (2) independent witnesses have turned hostile and have not supported the prosecution case, the trial court has passed the judgment on conjectures and surmises without any cogent evidence against the appellant, thereby, has drawn wrong inferences from the facts proved on record.

2. Respondents have